BE REASONABLE: ACCOMMODATIONS UNDER THE ADA Presented By: Nga Mahfouz Assistant Attorney General 18th Annual Attorney General’s CLE June 3, 2016 Little Rock, Arkansas

AMERICANS WITH DISABILITIES ACT 42 U.S.C. § 12102, et seq. 29 C.F.R. Part 1630

GENERAL RULE Covered employers must provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.

WHAT IS A COVERED EMPLOYER? Employers with 15+ employees Includes: employers, employment agencies, labor organizations, and joint labor management committees

WHO IS A QUALIFIED INDIVIDUAL? Has a disability. Possesses the requisite skill, experience, education, and other job-related requirements of the position. Can perform the essential job functions with or without a reasonable accommodation.

ESSENTIAL FUNCTIONS Fundamental job duties Does not include marginal functions

WHAT IS A DISABILITY A physical or mental impairment that substantially limits one or more of an individual’s major life activities, such as Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working

WHAT IS AN UNDUE HARDSHIP? Significant difficulty or expense Focuses on employer’s resources and circumstances, relative to the cost or difficulty of providing a specific accommodation Refers not only to financial difficulty, but to accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business

WHAT IS AN ACCOMMODATION? Change in the work environment or customary practices that enables an employee with a disability to enjoy equal employment opportunities. Modifications/adjustments to job application process that enable qualified applicants with disabilities to be considered for the position sought; or Modifications/adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified employee with a disability to perform the essential functions of that position; or Modifications/adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment enjoyed by other similarly-situated employees without disabilities.

REASONABLE ACCOMMODATION Applies to application process, work environment, manner of performing work, and enjoyment of benefits and privileges of employment Employer isn’t required to suffer “undue hardship” in providing accommodation

REQUESTS FOR ACCOMMODATION Communicate the need for adjustment because of a medical condition No magic words required Need not be in writing Others may request an accommodation on behalf of the employee Spouse Medical provider

THE INTERACTIVE PROCESS

CAN WE TALK? Identify the employee’s functional limitations and needs Discuss appropriate accommodations and alternatives Employer can request documentation, if the disability or need for accommodation is not obvious information regarding the disability, its functional limitations, and the need for reasonable accommodation.

PROVIDING THE ACCOMMODATION Can choose among alternatives, as along as the chosen accommodation is effective Do not delay in interactive process or providing accommodation Exception: After conditional offer of employment is made, and only if all entering employees in same job category are required to undergo same exam

ACCOMMODATING APPLICANTS May ask whether a reasonable accommodation is needed for the hiring process Absent undue hardship, must provide a reasonable accommodation even if employer does not think it will be able to provide a reasonable accommodation on the job. Question: An employer schedules an interview. The applicant is deaf and requests a sign language interpreter for the interview. The employer believes it will later have to hire a full-time interpreter if the applicant is hired. Can the employer cancel the interview? Question: A paraplegic applies for a secretarial position. Because the office has steps at the entrance, the employer arranges for the applicant to take a requisite typing test at a different location. The applicant fails the test. Must the employer provide any further reasonable accommodations for this individual?

ACCOMMODATING APPLICANTS (CONTD) Before a conditional offer is made, may not ask if reasonable accommodation is needed to perform the job Exception: when the disability is obvious or the applicant voluntarily discloses it AND the employer could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions. After a conditional offer of employment, may ask about the need for reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question. May ask a specific applicant if reasonable accommodation is needed, if the disability is obvious or the applicant has voluntarily disclosed it.

ACCOMMODATING EMPLOYEES Types of accommodations: job restructuring part-time or modified work schedules acquiring or modifying equipment changing tests, training materials, or policies providing qualified readers or interpreters reassignment to a vacant position

JOB RESTRUCTURING Includes modifications such as: reallocating or redistributing marginal job functions that an employee is unable to perform altering when and/or how a function, essential or marginal, is performed Employer is not required to reallocate essential functions as a reasonable accommodation Employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation.

PART-TIME/MODIFIED SCHEDULES Must provide a modified or part-time schedule when required, even if it does not provide such schedules for other employees. adjusting start/stop times providing periodic breaks re-scheduling when functions must be performed allowing use of accrued paid leave providing additional unpaid leave Question: An employee must take medication at a certain time each day. The medication causes extreme dizziness for about an hour. The employee asks for a daily 60-minute break when the dizziness occurs. Must the employer grant the request?

SCHEDULES (CONTD) Question: An employee works for a newspaper, operating the printing presses between 10 p.m. and 3 a.m. Due to her disability, she needs to work in the daytime. The essential function of her position requires that she work at night because the paper cannot be printed during the day. Must the employer modify her hours? An employee who needs a modified or part-time schedule because of a disability is entitled to such a schedule if there is no other effective accommodation and it will not cause undue hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant position for which s/he is qualified and which would allow the employer to grant the modified or part-time schedule.

SCHEDULES (CONTD) An employee receiving a part-time schedule as a reasonable accommodation is entitled only to the benefits, including health insurance, that other part- time employees receive. For example, if non- disabled part-time workers are not provided with paid vacation days, then the employer does not have to provide such days to an employee with a disability who is given a part-time schedule as a reasonable accommodation.

CHANGING POLICIES Can modify the policy for an employee who requires it as a reasonable accommodation while continuing to apply the unmodified policy to all other employees. Question: A policy prohibits employees from eating or drinking at their desks. A diabetic employee must immediately eat a candy bar or drink fruit juice to avoid going into shock if she takes too much insulin. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin levels are too high. Must the request be granted?

LEAVE Do not have to provide paid leave beyond that which is provided to similarly- situated employees. May require exhaustion of accrued paid leave first before providing unpaid leave. Job restoration If restoration creates undue hardship, must consider whether an equivalent vacant position exists. Question: An employee needs eight months of leave for treatment and recuperation related to a disability. Is employer required to hold job open? In lieu of providing leave, an employer may provide an alternative accommodation that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee's ability to address his/her medical needs. Job restoration is required upon return.

REASSIGNMENT Employee must be qualified for the new position (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation Reassignment is the reasonable accommodation of last resort. However, if both employer and employee voluntarily agree that transfer is preferable to remaining in the current position with accommodation, then the employer may reassign. "Vacant" = position is available when the employee asks for reasonable accommodation or employer knows that it will become available within a reasonable amount of time. Employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.

REASSIGNMENT (CONTD) Question: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions, but another employee just resigned and that position will become vacant in 3 weeks. The impending job is equivalent to the job currently held by the employee with a disability. Must the employer offer it to him? Must reassign employee to a vacant position that is equivalent in terms of pay, status, or other relevant factors if the employee is qualified for the position. If there is no vacant equivalent position, employer must reassign the employee to a vacant lower level position for which the individual is qualified. Reassignment does not include giving an employee a promotion. If employee is reassigned to a lower level position, employer is not required to maintain salary from the higher level position, unless the employer does so for employees without disabilities. Generally "unreasonable" to reassign an employee with a disability if doing so would violate the rules of a seniority system, even those unilaterally imposed by management. Exception: if employer retains the right to alter the seniority system unilaterally and has exercised that right fairly frequently or if a seniority system contains exceptions, such that one more exception is unlikely to matter.

AGLeslieRutledge AGRutledge AGLeslieRutledge ArkansasAG AGRutledge Attorney General Leslie Rutledge